Bloche v. DOD, No. 07-2050, 2020 WL 4287064 (D.D.C. July 27, 2020) (Contreras, J.)

Bloche v. DOD, No. 07-2050, 2020 WL 4287064 (D.D.C. July 27, 2020) (Contreras, J.)

Re:  Request for records concerning involvement of medical professionals in designing and implementing interrogation tactics

Disposition:  Granting defendants' renewed motion for partial summary judgment

• Litigation Considerations:  The court relates that "Plaintiffs do not challenge the present motion."  "Even so, the Court will review Army's updated justification as the burden nevertheless falls on the agency to establish the applicability of the FOIA exemption."
   
• Exemption 5, Deliberative Process Privilege & Attorney Work-Product Privilege:  "The Court . . . finds the application of the overlapping claims proper for [one remaining at issue document]."  "The Court previously found that Army had insufficiently explained the basis of its claim for [withholding this document] because it conflated the deliberative process and attorney-client privileges in an unclear manner."  The court relates that "Army [now] argues that '[the document at issue] is predecisional because it is antecedent to the finalization of the [Department of Defense Instruction] . . . ."  "Army further contends that [the document] is deliberative because 'the Army attorney provided the opinions and recommendations contained within the email to assist the Army in developing its recommendations . . . with respect to the draft [Department of Defense Instruction].'"  "Additionally, Army clarifies that 'the assistant deputy for health policy sought legal advice from an Army attorney . . . and [the document] contain[s] the Army attorney's legal advice and recommendations.'"  The court holds that "[t]he added detail pertaining to [the document] satisfies the requirements for both the deliberative process privilege and the attorney-client privilege."  "First, Army has appropriately updated its justification for the deliberative process privilege because it has clarified how the document is both predecisional and deliberative."  "Second, Army has sufficiently updated its justification for the attorney-client privilege because it has demonstrated that the document involves a confidential communication regarding legal advice between the Army attorney and the assistant deputy."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[defendant] confirms that [it] conducted a line-by-line review of [the document at issue] and has 'released all reasonably segregable non-exempt information in the document.'"  "The Court is thus satisfied that Army has released all reasonably segregable non-exempt information."